Congress has a penchant, whenever possible, for giving dramatic names to federal laws to underscore the intended purpose. One such example is the USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act, passed in the wake of the September 11 attacks. The Stolen Valor Act, passed in 2006, is another example, evoking the idea that real acts of courage by members of the armed services are devalued when someone who was not a war hero falsely claims to have been awarded a military medal.

Sometimes, however, the dramatic titles may mask other problems lurking beneath the surface of federal laws. On February 22, in United States v. Alvarez, the Supreme Court will hear arguments on the question whether this federal effort to punish those who falsely claim to have won military medals and decorations violates the First Amendment guarantee of freedom of speech.

The issue is of obvious importance to those studying constitutional law, particularly the First Amendment. And although less obvious, it may also have important ramifications for torts law as well as for students in media and communications law classes.

The question at the heart of the case is whether the First Amendment protects false statements. The Supreme Court has ruled that some types of false statements are not protected by the First Amendment – for example, speech that is knowingly false and damages another person’s reputation may be libel, while speech that intentionally misrepresents information and harms another person who relied on the statements may constitute fraud. But the Justices have never ruled that false statements which someone makes about himself, and which do not directly harm anyone else, are outside the umbrella of the First Amendment. The Court will confront that issue in considering the Stolen Valor Act.

The law was challenged by Xavier Alvarez, an elected board member of the Three Valleys Municipal Water District in Pomona, California. In 2007, Alvarez introduced himself publicly at a meeting as a former Marine with twenty-five years of service who had been awarded the Congressional Medal of Honor. In reality, Alvarez had never served in the military or received any military medals.

When Alvarez was prosecuted for violating the Stolen Valor Act, he challenged the constitutionality in two ways. First, he argued that the law was facially unconstitutional – that is, that it could never be constitutional under any scenario. Second, he argued that, at a minimum, the law was unconstitutional as applied to his conduct. After a federal district court refused to dismiss the charges against him, Alvarez pleaded guilty and was sentenced to three years of probation and a $5000 fine. As part of his plea, Alvarez retained the right to pursue his First Amendment challenge to the law on appeal.

In 2010, a divided panel of the United States Court of Appeals for the Ninth Circuit declared the Stolen Valor Act facially unconstitutional. The federal government then asked the Ninth Circuit to review the case en banc, which in other circuits generally means a rehearing by all of the judges in the circuit but in the Ninth Circuit (because it is so large) means rehearing before a panel of eleven judges. The case stirred up strong views: six other judges joined a dissent from the denial of rehearing en banc by Judge Diarmuid O’Scannlain, who urged the en banc court to reconsider the case on the ground that the First Amendment does not protect a “right to lie.” In response, Chief Judge Alex Kozinski wrote that the dissenters were calling for an “ever-truthful utopia” that was “terrifying” – to which Judge O’Scannlain countered that Chief Judge Kozinski’s dire warnings described “a fictional world” that was akin to “a Hollywood horror film.”

What is the legal dilemma that prompted this rhetorical flourish and triggered passionate friend-of-the-court briefs in the Supreme Court? In simplest terms, the question is whether the First Amendment protects lies. At a more complex level, the fight is about what legal standard should apply to a law that punishes false statements.

In free speech cases, the Court first considers whether the content of speech that the government is attempting to regulate falls into a category that is unprotected by the First Amendment. If the speech is not part of an unprotected category, the Court then determines whether the regulation is based on the content of the speech; such restrictions are generally subjected to the Court’s most exacting review, known as “strict scrutiny.” Strict scrutiny requires the government to show a compelling reason for restricting speech and to use a narrowly tailored means of regulating.

Let’s start with the categories. The Court has identified categories of speech that are not protected by the First Amendment, including obscenity, incitement to illegal action, child pornography, and libel of people who are not public figures. These categories are unprotected because they generally involve speech that the Court regards as inherently harmful to others.

But many false statements do not cause any harm to others. Consider boasts, hyperbole, exaggeration and other claims that may be false but do not injure anyone. There is no doubt that society condemns lies, but a basic principle of First Amendment rulings is that government may not prohibit speech merely because it may be offensive. The Justices have never specifically included false statements as an unprotected category. Moreover, in recent decisions the Court has made it clear that it has little interest in creating new categories of unprotected speech.

The second step in the Court’s enquiry is in dispute in Alvarez. The Ninth Circuit applied strict scrutiny to the Stolen Valor Act, reasoning that the law punishes speech based on its content. That court held that although Congress may have a compelling interest in regulating false statements about military medals, the law is unconstitutional because it is not narrowly tailored to minimize the impact on free speech.

The Ninth Circuit judges who urged rehearing argued that strict scrutiny is the wrong standard to use in reviewing the Act, and the federal government echoes that same argument in the Supreme Court. It contends that the Act punishes only a very narrow type of speech that involves knowingly false statements of fact about military medals. Moreover, the government explains, the Act is necessary to protect the importance and value of the medals and does not interfere with other speech about the military. Thus, the legal test should be whether the law leaves adequate “breathing space” for other speech.

In friend-of-the court briefs, twenty states, the American Legion, and a variety of other veterans’ organizations have urged the Court to uphold the Act. The states told the Court that they have similar laws punishing a variety of false claims about oneself, including false claims to be a public official, while the veterans’ organizations expressed strong concern for the integrity of military medals.

In his brief at the Court, Alvarez argues that upholding the Stolen Valor Act would expose all knowingly false statements of fact to punishment, substantially broadening government authority to restrict and punish free speech. He urges the Court to adhere to the use of the strict scrutiny test and find that Congress could use other means to protect the integrity of military medals. His arguments are also supported by friend-of-the-court briefs filed by a large coalition of news media organizations and by the American Civil Liberties Union (ACLU). The ACLU brief argues that the power claimed by the government under the Stolen Valor Act would provide “sweeping power to control and censor public debate.”

The Court has shown in recent years that it will not hesitate to strike down laws that impose restrictions on speech, even when that speech is controversial. Thus, in United States. v. Stevens (2010), the Court struck down a federal law that punished the sale of videos depicting animal cruelty, finding that the law was too broad and declining to create a new category of unprotected speech. And just last Term, in Brown v. Entertainment Merchants Association (2011), the Court once again declined to create a new and unprotected category, instead striking down a California law punishing the sale of violent video games to minors.

Now the Court must decide whether – unlike violent video games or animal cruelty – the integrity of military medals justifies the free speech restrictions of the Stolen Valor Act or whether First Amendment principles instead dictate that the law is unconstitutional. If the Court finds broadly that false statements are unprotected, that could lead in future cases to reconsideration of the law for fraud, misrepresentation, defamation, and false light invasion of privacy. If the Court were to rule more narrowly that military medals occupy a special place in our free speech value system, the impact may be less significant, although even that ruling might leave other courts wondering if there are other, similar special types of speech.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.